AKTER RUKSANA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1475/2018

[2020] HKCFI 1556

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1475 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 30-year-old national of Bangladesh who arrived in Hong Kong on 29 November 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 29 November 2015 or within two weeks of its early termination, but when it was prematurely terminated on 23 March 2014, she did not depart and instead overstayed and was arrested by police on 5 June 2017 for overstaying and using a forged identity card for which she was convicted and sentenced to prison for 15 months, during which she raised a non-refoulement claim with the Immigration Department on the basis that if she returned to Bangladesh she would be harmed or killed by two local businessmen for reporting to the police that they had raped her and/or by her brothers for bringing shame to the family.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Char Algi, District Mymensingh, Bangladesh. After leaving school she remained living with her parents and provided tuitions to children in her home village.

3.  One evening on 22 January 2009 when she was on her way home from work, she was accosted by two men who threatened her with a knife and dragged her into the forest where they raped her repeatedly before she was eventually released.

4.  Upon arriving home and having told her parents of her ordeal, her father then accompanied the Applicant to the local police to report the incident, but on their way they ran into the same two men who threatened to kill the Applicant’s father and his family if he dared to go to the police, and as they were powerful and influential in the village with political connections, her father therefore turned around and returned home with the Applicant when he later suffered a stroke and died several months later.

5.  After her father passed away, the Applicant’s elder sister decided to take the matter to the local police, but when they heard that the two men were politically connected to Awami League, they refused to do anything and told the Applicant and her sister to leave.

6.  However, when the news of the rape of the Applicant spread in the village, her brothers blamed her for bringing shame and bad luck to the family and started to scold and abuse her, and so her elder sister took the Applicant into her home in Village Kushtia in District Trishal, but when the local villagers heard about her ordeal, they told her that she was not welcome in their village, and so the Applicant moved back to her home village where she still felt great resentments from her brothers and her fellow villagers.

7.  Seeing what happened to the Applicant, her uncle then suggested that she should marry one of the men who had raped her, and made the arrangement for them to meet in a hotel, and thereafter they started a relationship, but when the Applicant became pregnant with the man’s child, her elder sister became furious and scolded her.  As a result the Applicant had an abortion and became depressed of having no family support and being rejected by her villagers that she decided to leave Bangladesh, which she eventually did in November 2013 for Hong Kong to work as a foreign domestic helper, but when her employment contract was prematurely terminated in March 2014, she did not depart and instead overstayed until her arrest by the police on 5 June 2017, and during her imprisonment she raised her non-refoulement claim for protection with the Immigration Department, for which she completed a Non-refoulement Claim Form (“NCF”) on 20 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

8.  By a Notice of Decision dated 28 March 2018 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those two men or her brothers upon her return to Bangladesh as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention on the part of those two men or her family to harm her let alone to kill her during the 4 years since the incident up to the time when she departed for Hong Kong, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 158 million people spread across a vast territory of more than 148,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other part of Bangladesh away from her home district in large cities such as Dhaka where it would be difficult if not impossible for her perceived enemies to locate her.

10.  On 10 April 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 26 June 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 9 July 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence of her claim that it was not satisfied that she would have any genuine or substantive risk of harm upon her return to her home country, and that in any event with state/police protection and reasonable internal relocation within Bangladesh available for her to move safely to other area away from her home district to re-establish her life and work without any risk of being located by her perceived enemies that her claim for non-refoulement protection failed on all applicable grounds.  

12.  On 26 July 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1) procedural unfairness in unlawfully fettering its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) procedural unfairness in that the adjudicator acted in a procedural unfair manner in dealing with the Applicant’s appeal;

(3) procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the Public Law sense or the result of procedural errors or unfairness;

(4) procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) procedural unfairness in providing the Applicant with the hearing bundle only 6 days before her appeal hearing before the Board with the majority of the documents were in English thus given the Applicant insufficient time to prepare for the appeal hearing due to her limited English and that she was no longer legally represented or to find an affordable interpreter to assist in her appeal before the Board; and

(6) that the Board significantly relied on source of news not officially recognized or were simply hearsay or outdated resulted in groundless speculations that it would be safe for her to return to her home country.

13.  These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the adjudicator had erred in the decision, or in what way was the Board unlawfully fettering its discretion or act in a procedurally unfair manner, or how did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what source of news relied on by the Board were unofficially recognized or were hearsay or outdated.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his or her claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal.

16.  Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing she never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.

17.  The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Bangladesh, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

18.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1